UK immigration - Tier 1 extension refused - need to appeal urgently
February 20, 2013 10:25 AM   Subscribe

I applied last year to extend my Tier 1 (General) Visa and it was refused last week. The Home Office's refusal letter said the evidence to support the income claimed did not meet documentary requirements. I need to appeal by Tuesday next week or lose my right to appeal and face deportation. Panicking and wading through masses of contradictory advice. Please help...

YANAL, YANML, but maybe you can help me know which lawyer to trust and whether I have a good case.

I've been in the UK since July 2008 and am only four months short of the five years needed to qualify for indefinite leave to remain. Originally I was sponsored and in August 2010 I changed to a Tier 1 (General) visa. This was granted for an initial two year period with a three year extension available. Before the two year initial period expired in August last year, I applied for an extension by post. At the time, I'd been in my current (well-paid) job for only five months and in order to meet the £40k income threshold I needed to use income from the seven months before that when I worked in a pub.

The Guidance asks for two forms of evidence to support the income claimed and lists acceptable forms. Because I was paid in cash, I couldn't provide bank statements showing my employer depositing the money. Instead the statements show me depositing cash payments roughly equal to the amounts on my payslips (rounded down as I didn't deposit the pennies). The bank statements were rejected on the basis that the amounts didn't exactly match the amounts in the payslips.

I knew this could be a problem for the UKBA as they are notoriously pedantic and rumoured to be internally encouraging refusals to meet the Government's lower immigration targets. I tried to explain the evidence as clearly as possible by providing the following:
- Explanation in my cover letter
- Annotations on bank statements explaining how the amounts related to payslips, e.g. I highlighted a cash deposit of £810 on 5 October 2011, and wrote next to it "Deposit of September pay, £15.70 retained for daily expenses". It clearly corresponds with the £825.70 net shown in my payslip as paid to me a few days earlier.
- Statement of earnings from HMRC. This was rejected because it relates to the entire financial year and not the period for which I claimed earnings, so again doesn't match exactly the income amount claimed. The HMRC doesn't collect tax information on a monthly basis so couldn't provide me with a monthly breakdown. However, the statement proves that I didn't forge the payslips and was legitimately employed and paying tax.
- Letter from the pub confirming it pays its employees in cash, that it paid me the amounts I claimed, and stating it would be happy to corroborate the evidence.
- Confirmation that I authorised the UKBA to discuss my earnings with the pub, its external payroll provider, or its accountants if they needed to confirm.

It wasn't perfect but I was advised at the time there was nothing more I could do. To anyone looking through all of the evidence, it shows a clear story. Also, it's incredibly unfair to reject me on this basis as it was beyond my control that I was paid in cash. However, the UKBA isn't in the habit of interpreting the Guidance favourably to applicants. Since receiving the refusal letter I've spoken to many lawyers and have heard as many different views on my best options and likely chances of success. Some are very encouraging, some very discouraging. I'm hoping to hear from someone who has experience of a similar situation to help me decide which view is more reliable.

The most persuasive arguments I've come up with (from own research and initial advice) are:

1. The UKBA misinterpreted the Guidance. It reads: "The applicant must provide two different types of supporting document for each source of earnings claimed. Each piece of supporting evidence must be from a separate source and support all the other evidence so that together they clearly prove the earnings claimed."
-> There is no requirement for the amounts to match. I met the requirement that each source must support the other evidence to clearly prove the earnings claimed.

2. Even if the Guidance does require the amounts to match, I met the requirements of the Immigration Rules by providing satisfactory proof I met the income threshold. The Guidance is not law and it was open to the UKBA (and is open to the court) to consider my evidence substantively.

3. In the alternative, to find against me would interfere with my right to a "private life" under Article 8 European Convention of Human Rights - I've been in the UK for a long time, am established here with social ties, and am very close to gaining permanent residency. If I were to be sent back to my home country I would not be able to apply for a new visa because the immigration rules have changed and no one can get visas now.

4. I've also been advised there's a technical argument available that the UKBA made a mistake of law in their letter regarding section 47 of the Immigration, Asylum and Nationality Act. The lawyer advised that even if the other arguments fail, this one should succeed and give me a partial win. which entitles me to a further appeal and should hopefully buy enough time to get me to June when I can apply for permanent residency.

It's a complete minefield, the rules change all the time, and everyone has a different view. I really really don't want to leave my life here. Please help.
posted by MrChuckles to Law & Government (3 answers total) 2 users marked this as a favorite
It's heartbreaking that this hasn't got an answer - however, this is a very complex set of laws, that people on this site don't really have a firm grip on. You best bet is to go back to the lawyer or talk to your local citizen's advice bureau.

The process of starting the appeal might just be enough for now, without focusing on any of the reasons you've outlined. I've observed appeals made by friends against other rulings (not immigration related) and it seems that this is a process of kicking things up a level to where people who can make decisions live. If your case is as clear-cut as this, then you should be able to successfully appeal.

The other option might be to find a local charity that deals with refugee and immigrant coming into the country and ask for their help with finding representation. However, I think that, again, the Citizen's Advice Bureau might be able to help. It's a free service. Fingers crossed for you!
posted by The River Ivel at 3:40 PM on February 20, 2013 [2 favorites]

You really need specialised immigration advice. You can try here to find a regulated adviser in your area. Its so difficult dealing with UKBA and you need someone with a lot of experience. I know some lawyers who claim to do immigration advice, but only as a way to get another stream of clients. They don't actually know the intricacies of the (ever-changing) legislation. I don't work with immigration issues, but with migrant workers - which is a different sub-section - and I've referred to barristers before who have rang me up and asked ME which law they should be challenging! So hopefully a specialist adviser will be able to help. Best of luck.
posted by billiebee at 4:41 AM on February 21, 2013

Response by poster: Damn. Thanks anyway guys.

billiebee - You're right, it's extremely complicated and the rules change all the time. Most of the immigration lawyers I spoke to didn't seem to know what they were talking about and several gave the impression that they just wanted my money. I'm extremely lucky that I'm a lawyer myself, speak English, and have lawyer friends who can put me onto contacts. I can't imagine how hard it would be for anyone without those advantages.

If I could find a lawyer I had confidence in who wouldn't charge me thousands upon thousands of pounds I'd go with them, but that's not easy. The above arguments represent the most convincing positive advice, drawn from a barrister friend-of-friend who deals with asylum appeals, another friend-of-friend who is a partner in a specialist immigration firm, and a solicitor who told me he'd won similar appeals. But I've spoken with a dozen or so other lawyers who hadn't come across a similar case before and so automatically assumed the UKBA's interpretation was correct. I'm sure other people have been in this position before so it would really help to hear from them. Sadly, no luck so far in forums.

Meanwhile, I haven't been able to travel for the six months they took to process my application and am in danger of losing my job when my contract comes up for renewal next month. It's tough but I'm keeping positive. I feel I have a decent shot and there are complicated ways of ensuring I stay in the system long enough to get residency.
posted by MrChuckles at 5:15 AM on February 21, 2013

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